Seoul Mapo-gu 252 - 5 Thai buildings

○○○

Attorneys 000 00

Attorney Park Jong-soo, et al.

Gangnam-gu Seoul ○○○ 82X - X

○○, the representative director of the United States

2. ○○○ Insurance Company

Seoul Central District ○○ro 58X

○○○

3. Large ○○○ Insurance Co., Ltd.

Seoul Central Central District ○○○ 5X - X

○○○

4. EL○○○○ Insurance Company.

Seoul Central District ○ Dong 8 】

○○○, Lee ○○

[Defendant-Appellant] Plaintiff 1 and 1 other

[Defendant-Appellee] ○○, Gu○, friendly○

2. The costs of lawsuit shall be borne by the Plaintiff.

Until the delivery date of a copy of the application for change of claim and cause of claim, 5% per annum, and full payment from the next day.

By the day, 20% interest per annum shall be paid.

The following facts are not disputed between the parties, or may be recognized by adding up the whole purport of the pleadings to each entry in Gap evidence Nos. 1, 2, 3, and 5 (including each number), Eul evidence Nos. 1 and 2 (including the number).

A. The party status (1) The Plaintiff entered into an external audit contract with the non-party ○ Automobile Co., Ltd. (hereinafter “non-party ○”) pursuant to the Act on External Audit of Stock Companies, and is an external auditor who prepared an audit report on the financial statements in the year 1997 and 1998. (2) The Defendants are the insurers who entered into an insurance contract with the Plaintiff on January 30, 2002 under a contract for professional public accountant’s occupation liability insurance (hereinafter “instant insurance contract”).

나. 이 사건 보험계약의 내용 ( 1 ) 담보되는 책임 ( Coverage - professional liability ) : 보험자는 피보험자의 전문적인 회계업무 수행 중에 피보험자의 행위, 오류, 태만으로 인하여 제3자에게 법률상으로 부담하게 되는 책임에 대하여 보상한다. 다만, 피보험자의 위와 같은 행위, 오류, 태만에 대한 최초의 배상청구가 보험기간 내에 이루어지고, 그에 대한 서면통고가 보험자에게 접수되어야만 한다 ( The company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as compensatory damages caused by acts, errors, or omissions in the Insured ' s performance of the professional accounting services for others, provided that claim is first made against the insured for said acts, errors or omissions during the policy period and written notice of said claim is received by the Company during the policy period. ) ( 2 ) 기타 조건들 ( 가 ) 배상청구기준 ( Claims - Made Basis ), 즉 제3자로부터 최초의 손해배상청구가 제기된 것을 보험사고로 본다 .

(B) Retroactive Date: (i) on February 1, 1998, a joint acceptance clause (including a claim for damages due to an act, error, or negligence among business activities conducted after February 1, 1998) (c) a joint acceptance clause ( Co. - a joint acceptance clause) of a insurance contract of this case is liable for 30% of the liability for compensation under the insurance contract of this case (hereinafter referred to as "defendant ○○○○○○○○○○○○ Insurance Co., Ltd. (hereinafter referred to as "defendant ○○○○") and 25% of the liability for compensation to Defendant ○○○○○○○○○○○○ Insurance Co., Ltd. (hereinafter referred to as "Defendant ○○○○○○○○") and 25% of the liability for damages at each of the Defendant ○○○○○○○○○ insurance Co., Ltd. (hereinafter referred to as "Defendant ○○○○○○○○○○○ insurance company").

(3) The date on which an offer is made in Schedule and Statement (Schedule) (A): January 30, 2002.

(B) Insured (Insured): The insured’s insurance period from February 1, 2002 to February 1, 2003: (d) the amount of compensation limit: 5 billion won per insurance accident; an average of 15 billion won per year; 300 million won per accident: the definitions of the insured (INSURED) per year: a certified public accountant employed as a named insured and full-time officer; a partner, employee, executive officer or employee who performed specialized accounting affairs under a contract with the named insured; (e) a partner, employee, executive officer or employee who works within his/her business scope, regardless of whether he/she is named:

(5) For the purposes of the Act on the Management of Securities and Exchange, when an accident occurs during the insurance period and when a company receives written notice of the accident within the insurance period, this insurance policy shall apply to the negligence or defects that occurred during the performance of professional accounting affairs. If a company receives written notice of the occurrence of damages or defects that are likely to be caused by such negligence or defects to the insured under this insurance policy during the insurance period, the accident caused by such negligence or defects shall be considered to be an accident during the insurance period (for the purpose of the Act on the Management of Securities and Exchange, Doz., Doz.). For the purpose of the Act on the Management of Securities and Exchange, Maritime Affairs and Fisheries is deemed to be an accident for which Doz., Doz., Maritime Affairs and Fisheries to be responsible for the collection of damages, Doz., Doz., Maritime Affairs and Fisheries to be reported to the Corporation.

C. A certified public accountant of the Plaintiff, on March 27, 1998, prepared an audit report on the financial statements of Nonparty Company 26 (1997 fiscal year), and submitted an audit report on the financial statements of March 27, 199 (198 fiscal year), to the Securities and Futures Commission (hereinafter “the audit report of this case”). The Plaintiff stated in the above audit report that all of the Nonparty Company’s financial statements were prepared appropriately in accordance with the company’s general accounting standards. On December 14, 2002, Korea Investment Trust Securities Co., Ltd., Korea Investment Trust Co., Ltd, and Korea Investment Trust Securities Co., Ltd, filed a false statement on the audit report of this case against the Plaintiff et al., and filed a claim for damages equivalent to 100 million won on the ground that they trusted such false audit report and purchased the company’s corporate bonds issued by Nonparty Company and incurred losses (2002Ga7498, Jul. 20, 200).

11. 23. 23. Claim for damages equivalent to 3.5 billion won on the ground that the Plaintiff et al. trusted the audit report of this case against the Plaintiff et al. and incurred losses by lending to the non-party company (Seoul District Court Decision 2002Gahap7570).

(3) On December 26, 2002, the Plaintiff received a written peremptory notice of the claim for damages in relation to the instant case, and notified the Plaintiff (Evidence No. 1-1). (4) After which the Plaintiff filed a claim for damages, the Plaintiff paid KRW 150 million in total to the Korea Investment Trust Securities, the Korea Investment Trust Securities, the Korea Bank, the Reorganization Bank, the Korea Financial Corporation, and the Seoul Guarantee Insurance, and paid KRW 547,852,250 at the attorney’s expense in the relevant lawsuit.

2. The allegations and judgment of the parties

A. Summary of the plaintiff's assertion

Upon receipt of the notification of the claim for damages from a third party, the plaintiff immediately notified the defendant mer○ in writing, and thereafter, the plaintiff paid damages and attorney's fees for forced adjustment and reconciliation.

The insurance contract of this case does not have any reason for termination. Thus, the defendants are obligated to pay 397,852,250 won (1.50 million won + attorney's expenses + 547,852,250 won) calculated by deducting 300 million won from the plaintiff's own expenses as insurance money. Of these, the defendants seek payment of 1100 million won as part of their claim.

B. Summary of the defendants' assertion

① Prior to the conclusion of the instant insurance contract, the Plaintiff was subject to disciplinary action from the Securities Management Committee and the Ministry of Finance and Economy, and did not notify the Plaintiff’s partner, partnership, and certified public accountant was prosecuted for violating the Act on External Audit of Stock Companies. This is in violation of the duty of disclosure of important matters in the conclusion of the instant insurance contract. Therefore, the Defendant’s termination of the instant insurance contract on this ground. ② Furthermore, the instant insurance accident was caused by the Plaintiff’s crime committed by the Plaintiff, the insured, and thus, the Defendants are exempted from liability. ③ Furthermore, the statute of limitations

(c) Facts of recognition;

The following facts may be acknowledged as either in dispute between the parties or in combination with the purpose of the whole pleadings in each entry in the evidence Nos. 4 and 5:

(1) On September 18, 200, the Securities and Futures Commission notified the Plaintiff of the fact that there was a false statement about the excessive appropriation of sales claims and the excessive appropriation of accrued profits on the financial statements of Nonparty Company 26 and 27, but the Plaintiff, an external auditor, failed to audit such false statement (non-auditor). Then, the Ministry of Finance and Economy, on the financial statements of Nonparty Company 26 and 27, was subject to the allocation of equity capital (an excessive appropriation of outstanding amounts, an excessive appropriation of sales claims, etc.) on the financial statements of Nonparty Company 26 and 27, on the ground that the Plaintiff did not enter such false statement in the financial statements, on January 2, 2001, was subject to disciplinary action against the Plaintiff and his affiliated certified public accountant Kim ○-○, and Category ○○○, etc.

(2) Furthermore, due to the false entry or false entry of the above audit report, the Plaintiff and the certified public accountant affiliated with the Plaintiff, Kim○-○ (partnership) and the Category ○○ (General) were indicted on February 19, 201 due to the violation of the Act on External Audit of Stock Companies.

(3) The Plaintiff did not notify the Defendants of the foregoing details that occurred prior to the conclusion of the insurance contract.

(4) In the above criminal case, on January 28, 2005, the first instance court prepared an audit report to the Securities Management Commission and submitted the audit report to the effect that there was a false entry in the accounts, inventory assets accounts, sales guarantee reserve accounts, etc. of the non-party company 26, 27 years of imprisonment with prison labor, 10 million won to the non-party company 26, 27 years of suspended execution, 20 million won to the plaintiff, and 20 million won to the plaintiff, who is the employer, since the certified public accountants belonging to the plaintiff knew of the fact that there was no evidence submission, or was limited in the scope of audit, such as bank inquiry, confirmation of the current account, confirmation of the current account, and issuance of bills, etc., which was limited to only the remaining accounts, or the refusal of opinion on the whole account. However, the above judgment became final and conclusive on January 13, 2006 through the appeal of the court below and the appeal of the court below to the plaintiff who is the employer.

(5) On the other hand, after receiving the Plaintiff’s claim for the insurance money, the Plaintiff’s re-insurance company Ciuriuriuri (KOREN RE) investigated whether the insurance money is to be paid. On January 7, 2003, Ciurian requested the Defendants to terminate the instant insurance contract on the grounds that the Plaintiff’s breach of duty of disclosure has occurred to the Defendants, and on the other hand, the Plaintiff’s criminal act committed an insurance accident. Accordingly, the Defendants informed the Plaintiff that the instant insurance contract falls under the grounds for exemption based on the provisions D (D) of the instant insurance contract exemption clause. On January 10, 203, the Defendants notified the Plaintiff to terminate the instant insurance contract on the grounds of the Plaintiff’s breach of duty of disclosure.

(6) On the other hand, the insurance contract of this case existed as follows:

D) Paragraph (D) of this Article shall not be liable for any liability attributable to the insured's illegal position, fraud, criminal act, or bad faith (in respect of any liability attributable to the insured, i.e., the 1 and 2 Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz. Doz., Doz. Doz., Doz. Doz. Doz. Do.).

D. "Important matters" under Article 651 of the Commercial Act, where the insurer has a duty to notify the insurer at the time of the insurance contract due to breach of duty of disclosure, means the standard for determining whether to conclude the insurance contract or the contents of the insurance contract, such as the addition of insurance premium or special exemption clauses by measuring the occurrence of insurance accidents and the burden of liability arising therefrom, and if the insurer knows the fact objectively, it means the matters deemed that the insurer would not enter into the contract at least the same condition if it becomes aware of the fact. What constitutes fact-finding, which has no choice but to vary depending on the type of insurance, should be objectively observed and determined in light of the insurance technology (see Supreme Court Decision 95Da25268, Sept. 5, 197). Thus, according to the facts acknowledged earlier, it is reasonable to view that the insurer was not aware of the insurance contract before the conclusion of the insurance contract of this case or that the insurance company was not subject to the duty of disclosure and audit of the amount of the insurance contract to the defendant's financial and economic auditor.

Therefore, the above assertion by the Defendants is without merit.

E. According to the facts acknowledged earlier, it is reasonable to view that the Plaintiff’s act of preparing the instant audit report constitutes a violation of the Act on External Audit of Stock Companies, and that the occurrence of an insurance accident caused by a third party, such as a bank and securities company, to be liable for damages. Accordingly, it constitutes “liability due to an insured’s criminal act” and thus, the Defendant’s obligation to pay insurance proceeds is exempted.

(2) As to this, the Plaintiff asserts that the exemption clause should be interpreted only in the case of criminal acts by the “the insured’s year” but there is no reason to interpret it as limited.

(3) In addition, the plaintiff's certified public accountant only participated in the window dressing accounting and did not take part in the case of the representative director of the accounting firm who is the employer. However, the insurance contract of this case is intended to compensate for the legal liability to a third party due to the insured's act, error, or negligence during the course of the insured's professional accounting business. The scope of the insured is "titled insured and the certified public accountant employed by full-time officer, and the registered insured," and the above partnership, employee, officer, or the person who becomes the employee, or the person who becomes the employee, regardless of his name, shall be included within the scope of his business. Thus, the above argument of the plaintiff is without merit.

(4) The plaintiff and its affiliated certified public accountants did not have only dolusences about the false preparation of the audit report of this case, but also did not have such a degree of negligence.

I argue that the exemption clause should not be applied.

In addition, there is no special reason to interpret that the crime caused by willful negligence should be excluded from the exemption provision, and according to the evidence Eul evidence No. 5, the certified public accountant can only take the necessary verification and audit procedure in presenting "reasonable opinion" to the audit report, and only after having a reasonable conviction that can form a "reasonable opinion". The certified public accountant belonging to the plaintiff trusted only the result of inventory adjustment of the non-party company without undergoing an inspection meeting on inventory property accounts, and received a report that there was no ground for calculating the accounts calculated by the company with respect to the sales guarantee reserve fund account, the non-party company accepted such materials as required by the non-party company even though the non-party company did not properly undergo the inspection procedure on short-term loan account in 1997 without undergoing the financial institution's confirmation procedure, and therefore, the non-party company was limited to the scope of audit and inspection due to the lack of the basic procedure to verify the existence of the non-party debt, but it is difficult to view that the non-party company's audit report of this case did not contain sufficient knowledge and evidence.

(5) Lastly, the plaintiff alleged that only the non-party company's independent crime and that the plaintiff or the certified public accountant belonging to the plaintiff did not participate in the "criminal act", but the "criminal act" falling under the exemption clause of this case was prepared by the certified public accountant, and that the certified public accountant, even after having received various kinds of abnormal reports, stated "reasonable opinion" as it is by accepting the company's demands. The plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Gin-han

Judges Dok-ho